Insurer Bad Faith Setup Defense and Reverse Bad Faith Claims: Insurer vs. Policyholder Perspectives

Navigating Insurer Defenses Against Policyholders in Bad Faith Litigation

A live 90-minute CLE webinar with interactive Q&A


Wednesday, June 28, 2017 (in 2 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will prepare counsel to insurers and policyholders with an analysis of insurer defense trends in bad faith litigation based on wrongful conduct by the third-party plaintiff or first-party policyholder. Specifically, the panel will discuss “bad faith setup” and fraudulent conduct or misrepresentation by the plaintiff, as well as insurer efforts to create an affirmative defense of reverse bad faith.

Description

In defending bad faith claims, insurers are increasingly using various legal defenses to ensure that the insured’s conduct is considered when evaluating the conduct of the insurer. Allegations generally include failure to cooperate, failure to give proper notice of a claim, or fraud and misrepresentation.

A recent Pennsylvania federal court allowed an insurer to proceed with a “bad faith setup” defense, giving ammunition to insurers alleging bad faith tactics by claimants employed solely to obtain punitive damages. At issue was an alleged unreasonably quick settlement deadline and delay tactics by the claimant.

Insurer “reverse bad faith” allegations that the plaintiff breached the covenant of good faith and fair dealing have met with limited success by courts. However, there are some reported cases recognizing the claim, at least in dicta, and insurers continue to pursue the claims.

Listen as our authoritative panel of policyholder and insurer counsel discusses the latest litigation trends in defenses raised by insurers in bad faith litigation that focus on the alleged wrongful conduct of the claimant. The panel will cover bad faith setup, fraud or misrepresentation by the claimant, and the affirmative defense of reverse bad faith.

Outline

  1. Trends in defenses to bad faith claims focusing on claimant’s conduct
    1. Bad faith setup
    2. Fraud or misrepresentation
    3. Other defenses or strategies
  2. Trends in “reverse bad faith” as an affirmative defense
  3. Best practices for policyholders and claimants to counter these defenses
  4. Best practices for insurers in raising and proving these defenses

Benefits

The panel will review these and other key issues:

  • What conduct by claimants generally gives rise to a bad faith setup defense and how have courts treated this defense?
  • What types of conduct by the policyholder or claimant are typically raised as a bad faith action?
  • In what circumstances have insurers pursued the doctrine of reverse bad faith and how have these arguments been treated by the courts?

Faculty

Mark Garbowski, Shareholder
Anderson Kill, New York

Mr. Garbowski's practice concentrates on insurance recovery, exclusively on behalf of policyholders, with particular emphasis on professional liability insurance, D&O, fidelity and crime-loss policies, Internet and high-tech liability insurance issues. In addition, Mr. Garbowski is active in the firm's settlement and alternative dispute resolution adjunct to its insurance coverage litigation practice in which he develops computerized insurance allocation models for long-tail claims and other complex insurance models.

Robert Mangino, Partner
Clyde & Co., New York

Mr. Mangino’s practice is focused on complex insurance and reinsurance litigation and arbitrations. He represents domestic and international insurers and reinsurers in a variety of complex disputes, including asbestos and environmental coverage, E&O and D&O, and property litigation. Mr. Mangino is a past Chair of the Excess, Surplus Lines and Reinsurance Committee of the Tort and Insurance Practices Section of the ABA.


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Insurance Law Advisory Board

John Broghammer

Partner

Greve Clifford Wengel & Paras

Tred Eyerly

Director

Damon Key Leong Kupchak Hastert

John D. Green

Partner

Farella Braun + Martel

Alan P. Jacobus

Proprietor

Law Offices of Alan Palmer Jacobus

William E. Kelley, Jr.

Partner

Drewry Simmons Vornehm

William O. Krekstein

Partner

Timoney Knox

Jay M. Levin

Principal and Chair of the Insurance Recovery Practice

Offit Kurman

Peter J. Mintzer

Partner

Selman Breitman

Barry S. Neuman

Partner

Whiteford Taylor Preston

Andrew G. Wanger

Partner

Clyde & Co.

Britton D. Weimer

Partner

Weimer & Weeding

Sandra I. Weishart

Partner

Hinshaw & Culbertson

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